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Moore v. University of Kansas

United States District Court, D. Kansas

July 28, 2015

DAVID S. MOORE, Ph.D, Plaintiff,
UNIVERSITY OF KANSAS, et al., Defendants v.

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For David S. Moore, Ph.D., Plaintiff: Daniel R. Cofran, LEAD ATTORNEY, Kansas City, MO.

For University of Kansas, an agency of the State of Kansas, Jeffrey S. Vitter, Ph.D., Steven F. Warren, Ph.D., Joseph A. Heppert, Ph.D., Bernadette Gray-Little, Ph.D, University of Kansas Center for Research, Inc., Defendants: David R. Cooper, Sarah A. Morse, LEAD ATTORNEYS, Fisher, Patterson, Sayler & Smith, LLP - Topeka, Topeka, KS.

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Sam A. Crow, United States District Senior Judge.

The case comes before the court on the motion to dismiss filed by the defendants

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Joseph A. Heppert, University of Kansas, Jeffrey S. Vitter, and Steven Warren. (Dk. 35). This action arises from plaintiff David S. Moore's suspension, allegations of a hostile work environment, and eventual termination from the position of Assistant Scientist and Director of the Microscopy Analysis and Imaging Laboratory (" MAI Lab" ) at the University of Kansas (" KU" ). In his 116-page complaint that contains 231 numbered paragraphs, Moore alleges the violations of his rights under the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § 12,101, et seq. (Count One) for discrimination based on his disability and retaliation for exercising his disability rights; the Rehabilitation, Comprehensive Services and Developmental Disabilities Act (" Rehabilitation Act" ), 29 U.S.C. § 701, et seq. (Count Two) for discrimination based on his disability and retaliation for exercising his disability rights; National Defense Authorization Act, Pilot Program for Enhancement of Contractor Protection from Reprisal for Disclosure of Certain Information (" NDAA" ), 41 U.S.C. § 4712, et seq., (Count Three) for being a whistleblower in disclosing mismanagement, waste, abuses and non-compliance with federal grants and contracts; False Claims Act, (" FCA" ), 31 U.S.C. § 3730, et seq., (Count Four) for being a whistleblower in investigating and requesting information reasonably believed to evidence fraud and mismanagement of federal grants and contracts; Federal Civil Rights Act, 42 U.S.C. § 1983 (Count Five) for sustaining adverse employment action in retaliation for speaking on matters of public concern protected by the First Amendment, namely the violation of federal laws governing the federal funds; Federal Civil Rights Act, 42 U.S.C. § 1983, (Count Six) for sustaining adverse employment in violation of his constitutional right to substantive due process; and the whistleblower exception for retaliatory discharge to the Kansas common-law policy on employment at will (Count Seven) for being a whistleblower and disclosing what he reasonably believed were violations of law and KU policy.

The individual defendants, Heppert, Vitter and Warren, are sued in their official capacities for prospective injunctive relief in four counts: ADA (Count One), NDAA (Count Three), FCA (Count Four), and Kansas common law retaliatory discharge action (Count Seven). They are sued in their individual capacities for money damages and injunctive relief on the two § 1983 counts (Counts Five and Six). The plaintiff names KU as a defendant only in Count Two--the Rehabilitation Act and seeks reinstatement, back pay and other equitable relief.


KU employed Moore as an assistant scientist and director of the MAI Lab on its Lawrence Campus from December 1, 2004, until he was discharged on October 18, 2013. Moore alleges his action arises from KU suspending him for four weeks without pay in September of 2013 for " disruptive" and " unprofessional" behavior and then terminating him the next month when his appeal of the suspension was still pending.

Both as a student at KU and an employee in different departments, Moore informed his advisors and superiors that he had been diagnosed with Attention Deficit Disorder/Attention Deficit and Hyperactivity Disorder (" ADD/ADHD). And upon his employment at the MAI Lab, Moore told his superiors/supervisors at the MAI Lab about the ADD/ADHD diagnosis. Moore alleges he has experienced symptoms consistent with this diagnosis and has managed them with medications, counseling, and behavioral management skills and learning. The plaintiff asserts his ADD/ADHD may explain his behavior that others label as unprofessional and that KU refused to discuss or make work accommodations

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for his condition but only increased the work which exacerbated his condition. The plaintiff incorporates his disability allegations into count one (ADA), count two (Rehabilitation Act), and counts five and six (42 U.S.C. § 1983--First Amendment and Substantive Due Process).

For his whistleblowing claims, the plaintiff alleges that he had made " long-standing and repeated expressions of concern about the Federal Funds Waste and Mismanagement, MAI Lab Renovation Project Waste and Mismanagement and Research Misconduct-Plagiarism," and his concerns " were not welcomed by his superiors," but they were " tolerated." (Dk. 30, ¶ 65). He apparently expressed his concerns in memoranda, emails and meetings over a period of years without them being addressed as he expected. " [F]rustrated with his superiors' refusal to even consider, let alone take action, regarding his concerns about . . ." these areas, the plaintiff in April of 2013 went " outside the University . . . , and communicated" his concerns to a significant funder of the medical research program, the Federal Bureau of Investigation, and the Kansas City Star. Id. at ¶ 72. The plaintiff brings his whistleblower allegations in count three (NDAA), count four (FCA), counts five and six (42 U.S.C. § 1983--First Amendment and Substantive Due Process), and count seven (state retaliatory discharge).

The three individual defendants moving for dismissal, as named and identified in the amended complaint, are Dr. Jeffrey Vitter, KU's Provost and Executive Vice Chancellor for KU; Dr. Stephen Warren, KU's Vice Chancellor for Research and Graduate Studies; and Dr. Joseph Heppert, KU's Associate Vice Chancellor for Research and Graduate Studies.


In deciding a Rule 12(b)(6) motion, a court accepts as true " all well-pleaded factual allegations in a complaint and view[s] these allegations in the light most favorable to the plaintiff." Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009), cert. denied, 558 U.S. 1148, 130 S.Ct. 1142, 175 L.Ed.2d 973 (2010). This duty to accept a complaint's allegations as true is tempered by the principle that " mere 'labels and conclusions,' and 'a formulaic recitation of the elements of a cause of action' will not suffice; a plaintiff must offer specific factual allegations to support each claim." Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). As recently clarified by the Supreme Court, the standard under 12(b)(6) is that to withstand a motion to dismiss, " 'a complaint must contain enough allegations of fact, taken as true, to state a claim to relief that is plausible on its face.'" Al--Owhali v. Holder, 687 F.3d 1236, 1239 (10th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). Thus, " a plaintiff must offer sufficient factual allegations to 'raise a right to relief above the speculative level.'" Kansas Penn Gaming, 656 F.3d at 1214 (quoting Twombly, 550 U.S. at 555). " The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). It follows then that if the " complaint pleads facts that are 'merely consistent with' a defendant's liability it 'stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id. " 'A claim has facial plausibility when the

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[pleaded] factual content . . . allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1178 (10th Cir. 2012). " Thus, in ruling on a motion to dismiss, a court should disregard all conclusory statements of law and consider whether the remaining specific factual allegations, if assumed to be true, plausibly suggest the defendant is liable." Kansas Penn Gaming, 656 F.3d at 1214.

ADA-Count One--Official Capacity Claims--Individual Defendants

It is well established that official capacity " claims for back pay, monetary damages, and retroactive declaratory relief are barred by the Eleventh Amendment." Meiners v. University of Kansas, 359 F.3d 1222, 1232 (10th Cir. 2004). At the same time, " [i]n Ex parte Young, [209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)], the Court held that the Eleventh Amendment generally will not operate to bar suits so long as they (i) seek only declaratory and injunctive relief rather than monetary damages for alleged violations of federal law, and (ii) are aimed against state officers acting in their official capacities, rather than against the State itself." Hill v. Kemp, 478 F.3d 1236, 1255-56 (10th Cir. 2007), cert. denied, 552 U.S. 1096, 128 S.Ct. 884, 169 L.Ed.2d 725 (2008). The plaintiff believes count one comes within these terms as count one is a suit against the individual state officers, " Drs. Bernadette-Gray Little, Jeffery Vitter, Stephen Warren and Joseph Heppert in their official capacities for prospective, non-monetary injunctive relief, namely, reinstatement, for employment discrimination and retaliation." (Dk. 48, p. 12).

The twist here comes in how the defendants argue for the court to apply this holding:

The continuing violation exception to Eleventh Amendment immunity is not without limitations. In Ex Parte Young, the Supreme Court noted that the state official must have the power to perform the act required in order to overcome the jurisdictional bar of the Eleventh Amendment. Ex Parte Young, 209 U.S. at 157, 28 S.Ct. at 452-53. None of the individuals that Klein has sued has the power to provide him with the relief he seeks--reinstatement. The Medical Center is part of the University of Kansas. Under K.S.A. § 76-714, the chief executive officer of the University is the Chancellor. The Chancellor serves " at the pleasure of" the Kansas Board of Regents. K.S.A. § 76-714. As chief executive officer, the Chancellor appoints all employees of the University, and those employees serve at the pleasure of the Chancellor. K.S.A. § 76-715. The court concludes that the current Chancellor is the only person with the authority to reinstate Klein to his former position if so ordered. Therefore, Klein's claims for injunctive relief against the individual defendants in their official capacities are dismissed.

Klein v. University of Kansas Medical Center, 975 F.Supp. 1408, 1417 (D. Kan. 1997). Applying Klein here means the KU " Chancellor is the only person with the authority to reinstate" Moore, and the other individual defendants must be dismissed for not having the authority to reinstate the plaintiff. Id.

The plaintiff counters first with the amended complaint's allegation that, " on information and belief, Dr. Gray-Little's authority to make hiring and firing decisions, including reinstatement of discharged employees, has been delegated under University policies and procedures to Dr. Vitter." (Dk. 30, ¶ 42). With regard to the defendant Warren, the plaintiff points to the allegation that Warren signed

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the plaintiff's termination letter. (Dk. 30, ¶ 82). As for all three individual defendants, including Heppert, the plaintiff says count one properly names all three based on that count's general prayer for " (c) equitable relief as may be appropriate to eliminate any patterns and practices of discrimination against faculty and academic staff of the University . . . ." (Dk. 30, p. 90).

In reply, the defendants argue the plaintiff apparently concedes Heppert lacks the authority to reinstate. They also summarily restate their position that they are not proper defendants unless they possess the authority to reinstate, and they do not address the plaintiff's other points.

This issue was recently addressed in Klaassen v. University of Kansas School of Medicine, 84 F.Supp.3d 1228, 2015 WL 437747 (D. Kan. 2015), clarified on reconsideration on other grounds, 2015 WL 2400773 (D. Kan. May 15, 2015), with the court holding that the KU " Chancellor had delegated authority to make KUMC faculty appointments to the Executive Vice Chancellor" making the Executive Vice Chancellor " a proper defendant who can provide prospective relief." 2015 WL 437747 at *13. Moore similarly alleges here that the KU Chancellor delegated reinstatement authority to Vitter who is identified as the Executive Vice Chancellor. Based on the complaint's allegations and the parties' arguments, Vitter remains a properly named defendant. The amended complaint does not allege or provide any legal or factual bases for inferring that Warren has the authority to reinstate Moore. Nor does the complaint allege any such authority resting with Heppert. The court fails to see how the defendants Warren and Heppert should remain as defendants to this count on a claim for reinstatement. Warren and Heppert have not offered any arguments for the plaintiff's alternative claim of other " equitable relief . . . to eliminate any patterns and practices of discrimination." (Dk. 30, p. 90). The court finds that Warren and Heppert are not proper parties on a claim of reinstatement, and the motion to dismiss is otherwise denied.

Rehabilitation Act--Count Two--Defendant KU

The plaintiff concedes that punitive damages and compensatory damages are unavailable under the Rehabilitation Act. The plaintiff agrees his prayer for relief on this count should state, " all other appropriate relief as may be appropriate under" the Rehabilitation. Thus, the plaintiff is not seeking and is ...

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